Introduction

Can we imagine Shell in the dock, at the International Criminal Court? It certainly seems as if many people around the world whose health, livelihoods and environments are affected by the extractive industries, would like to see this happen. It even seems as if multinational corporations themselves (or the persons that run them) are onboard with – the idea at least – of corporate criminal liability in international law. What does this mean? Will we ever see true ‘corporate accountability’, or is corporate support for accountability mechanisms more cynical? Are multinationals using ‘corporate accountability’ in the literal sense, in order to calculate and optimize exposure to potentially risky activities and manage civil society backlash? Is support for international criminal law nothing but the deployment of ‘canned morality’ aimed at bolstering their legitimacy in an increasingly corporate-governed world, and getting angry citizens off the streets, back home onto the sofa to Netflix & chill?

One of the main responses to the corporate legitimacy backlash of the past decades has been the development of the notions of ‘corporate citizenship’ and ‘corporate social responsibility’ (CSR) and a wealth of non-binding norms on corporate behaviour culminating in UN Special Representative on Business and Human Rights John Ruggie's ‘Guiding Principles’ in 2011 (UNHCR, 2011). Frustrated by the lack of ‘teeth’ (enforceability) of these regimes – in particular when it comes to multinationals’ involvement in environmental destruction, war, displacement and other situations of grave suffering – cause lawyers, activist scholars and others have started to push for ‘corporate accountability’ through binding norms in international law. One route that is regularly debated and advocated is the creation (or, recognition and enforcement) of a norm of corporate liability in international criminal law (ICL), or what we might call ‘corporate ICL’ (CICL). This proposal rides on a trend of increasing acceptance of corporate criminal liability in domestic legal systems and massive popular support for ICL globally (Baars, 2014). A putative CICL has manifested itself in recent scholarly writing on the topic as well as in activist lawyer-led ‘weaponized CSR’ litigation and advocacy in multinationals’ home states based on claims of corporate complicity in war crimes, crimes against humanity, environmental and other crimes committed elsewhere in the world.

The corporation has become a dominant form of economic life. While corporations have been with us since the early modern era, their influence and importance have grown exponentially. Today, corporations are among the largest economic entities in the world. Their annual turnover is greater than the gross domestic product of all but the largest nation-states. A handful of large corporations dominate most key global markets. Corporations – and their extended value chains – are an important source of employment. Governments rely on corporations – directly or indirectly – for tax revenues, expertise, and economic development. Citizens rely on corporations for everyday needs such as transport, healthcare, food, and utilities such as power and electricity. If we really want to understand the contemporary economy, a good place to start is the corporation.

Corporations are not just economically important. They play a vital role in politics. Corporations have become political actors in and of themselves. For instance, in the USA, corporations have been granted the rights of free speech and religious freedom normally given to flesh-and-blood citizens. Worldwide, corporations often have a huge influence on the creation of international agreements and standards. For instance, large corporations play an important part in drafting international trade and investment agreements. In some cases, corporations end up playing a quasi-state role – particularly when governments are unwilling or unable to provide basic citizenship rights. For example, they have become important sources of welfare services, such as healthcare, education, and housing in some settings. With the rise of neoliberalism, many states have outsourced the provision of public services to corporations. In the UK alone, about 50 per cent of public spending is outsourced – and a majority of that spending goes to corporations. The result is that activities which only a few years ago were seen as a preserve of the state – such as waging war or imprisoning citizens – have become corporatized activities.

In other settings, corporations have taken on a role of providing civic rights. For instance, social media companies like Twitter and Facebook claim to provide spaces of free speech. Some even claim that corporations now play a role in helping to guarantee political rights – such as the process of collective deliberation which takes place in company-sponsored ‘multi-stakeholder initiatives’.